19 Oct What is an Unlawful Detainer?

An unlawful detainer refers to the conduct of a tenant who is in possession of an apartment or leased property and refuses to leave the premises when the lease terminates. Typically, this happens when the landlord wants to evict the tenant for not paying the rent or for endangering the safety of the other tenants or the landlord’s property. To evict, a landlord must initiate an unlawful detainer suit against the tenant.

Legally, only a sheriff can evict a tenant from the premises. Even if a tenant is months behind on rent, the landlord cannot evict the tenant or throw out the tenant’s belongings; rather, a landlord must secure a court order against the tenant and then the sheriff can evict the tenant.

The law is clear that a landlord cannot use his or her own measures to evict a tenant. A landlord cannot physically remove or lock out the tenant, cut off utilities, or remove outside windows or doors. The landlord must follow legal procedures. If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods.

Navigating the unlawful detainer process can be complex. Speak to an attorney who has knowledge of California landlord/tenant law to engage in such an action.

Process for Evicting a Tenant

The purpose of a court-administered eviction process is to secure the tenant’s rights to a court hearing, which is particularly important if the tenant believes that the landlord lacks grounds to evict.

This is a brief outline of the process:

The landlord serves the tenant with a notice.

The notice must be served by someone who is not the landlord and is over the age of eighteen.

The landlord waits for the 5-day notice period to end.

If the tenant does not act according to the terms of the notice, the landlord files an Unlawful Detainer action

A hearing is scheduled, likely within 20 days of the end of the 5-day notice period or within 20 days of the Unlawful Detainer action being filed.

Scope of an Unlawful Detainer Hearing

Note that unlawful detainer proceedings do not cover arguments about security deposits or unpaid rent. This action is used only to remove the tenant from the premises. To settle issues concerning security deposits and unpaid rent, a landlord would need another cause of action against the tenant. Similarly, unlawful detainer proceedings do not allow for a tenant to file a cross-complaint against the landlord. Those issues are addressed through different channels.

Unknown Tenant/Arrieta Claim

Every adult tenant on the property has the right to be heard in court when contesting an unlawful retainer. This is applicable even if the person is not a named resident, is not an authorized occupant, and is unknown to the landlord.

If not named in the unlawful detainer lawsuit, that tenant can delay the eviction by filing a “third party claim of right to possession,” otherwise known as an “Arrieta claim.” To avoid an Arrieta claim, a landlord would file a “prejudgment claim of right of possession” form and serve it together with unlawful detainer complaint. This form alerts all unnamed occupants about the unlawful detainer action. Any unnamed occupant seeking to fight the eviction must complete the prejudgment claim form and file it with the court.

If a prejudgment claim form is not served and an unknown occupant files an Arrieta claim, then the eviction hearing will not occur as scheduled. Instead, the court will set a new hearing, usually in three to four weeks. At the hearing, the court determines whether the claimant should have been named as a party to the unlawful detainer action. If the court determines the unknown party to be legitimate, it may require the landlord to restart the eviction process, including naming the previously unknown tenant as an additional defendant.

Note that prejudgment claimants have ten days to respond, while personally served defendants have five days. This would delay the process by an additional five days.

The California unlawful detainer process is complex and potentially frustrating. If you are involved in a landlord/tenant dispute, then you need a lawyer who is both knowledgeable and experienced in landlord/tenant law. You should contact RA & Associates, experienced attorneys in foreclosure defense and related matters, at 1-888-504-1551 or [email protected].

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